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Pedda Seetharamappa and ors. Vs. Pedda Appaiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 852 of 1957
Judge
Reported inAIR1962AP84
ActsCode of Civil Procedure (CPC), 1908 - Order 26, Rules 9, 10(1), 10(2) and 18; Easements Act, 1882 - Sections 13 and 15
AppellantPedda Seetharamappa and ors.
RespondentPedda Appaiah
Appellant AdvocateVenkataramana, Adv.
Respondent AdvocateI. Baliah and ;B. Venkata Rao, Advs.
Excerpt:
(i) civil - commissioner - order 26 rules 9, 10 (1) 10 (2) and 18 of code of civil procedure, 1908 - commissioner appointed ex-parte - failure to issue notice to parties under order 26 rule 18 - whether report of commissioner can be relied upon - notice to parties to suit before commissioner making local inspection necessary under order 26 rule 18 - any report made without confirming provisions of rule not valid and cannot be relied upon - report on which commissioner derives his knowledge illegal - commissioner cannot be examined as witness under order 26 rule 10 (2). (ii) easement of necessity - sections 13 and 15 of easement act, 1882 - claim of right to way on basis of easement by necessity - evidence to effect that said way used only periodically - easement of way by necessity can be.....(1) s. a. no. 852 of 1957, on behalf of the defendants is directed against the judgment and decree of the subordinate judge of anantapur dated 26th february, 1957, allowing the appeal and decreeing the suit of the plaintiff respondent, for a declaration of his right to the use of the cart tracks a b c d and a b c e in the plaint plan and for a permanent injunction restraining the defendants from interfering with the respondent's user of the above siad cart tracks, which was dismissed by the district munsif.(2) the facts which given rise to this appeal are: the appellants and the respondent are residents of konapuram village in kalyandurg taluk and are closely related to each other. the respondent is the owner of plot p in cherlothota shown in the plaint plan. the way to this field is.....
Judgment:

(1) S. A. No. 852 of 1957, on behalf of the defendants is directed against the judgment and decree of the Subordinate Judge of Anantapur dated 26th February, 1957, allowing the appeal and decreeing the suit of the plaintiff respondent, for a declaration of his right to the use of the cart tracks A B C D and A B C E in the plaint plan and for a permanent injunction restraining the defendants from interfering with the respondent's user of the above siad cart tracks, which was dismissed by the District Munsif.

(2) The facts which given rise to this appeal are: The appellants and the respondent are residents of Konapuram Village in Kalyandurg Taluk and are closely related to each other. The respondent is the owner of plot P in Cherlothota shown in the plaint plan. The way to this field is through G. A. B. C. D. in the plaint plan and at point C the way bifurcates; the C E is used for taking carts to Cherlothota. All the sharers of Cherlothota have been using the said track for taking their carts to Cherlothota as well as to Paduthota and other fields to the west and the respondent and his predecessors have been using the cart track form time immemorial without any obstruction from anybody. Originally, the respondent's branch and the appellants' branch belonged to a joint family at which time all the lands were held joint and about 30 years ago during the life time of the respondent's father, a division of the family property took place and the appellant's branch got the fields S. No. 366-1/A, 367-1/A and 367-1/-C and the right to use the cart track was recognised for the benefit of all the sharers and all the sharers have been using the said track even after the partition. The appellants denied this right of the rerspondent and hence the present suit for declaration.

(3) In the plaint, it also stated that apart from the route G A B C D, thereis another cart track. f E D shown in the plaint plan, which runs through salinefields and is unusablefor a mJor portion of theyear as it would bewater-logged.

(4) The first appellant who was thefirst defendant in the trial Court in his written statement denied that the rerspondent had nay right of way either along G A B C D or G A B C E in the plaint plan and also that the path C E ever existed and stated that the usual cart track to Cherlothota and beyond from Kondapuram village was across the tank bund viz., F E D route running through lands not occupied by others and not under cultivation. It was further averred that there had never been any objection for the use of that a pathway by any one. While admitting that a small portion of it was marshy during rains, he stated that it could beset right by putting a little gravel or stone. The defendant inter alia denied that both G A B C D and G A B C E were ever used from time immemorial. The other appellants adopted the written statement of the first appellant.

(5) The following five issues were framed by the District Munsif:

1. Has the plaintiff prescribed his right to the user of the cart tracks A B C D and A B C E shown in the plaint plan by enjoyment of the samefor over twenty years?

2. Has the plaintiff acquired any such right by easement of necessity?

3. Is the cart track F E D noted in the plaint plan, the usual rastha used by the plaintiff, for proceeding to his field, as contended by the defendants?

4. Is the plaintiff entitled to injunction asked for?

5. To what relief is the plaintiff entitled?

(6) The respondent examined three witnesses and marked Exs. A-1 to A-8, while the appellants produced three witnesses and filed two documents, Exs. B-1 and B-2. The District Munsif found that the respondent had not acquired a right to use the cart track A B C D and A B C E, either by prescription or easement of necessity. He further found that the usual cart track for the respondent to take his carats to his land was F E D route. In the result, the District Munsif dismissed the suit. On appeal by the respondent, the appellate Court disagreeing with the findings of the District Munsif decreed the Suit. Hence this second apeal.

(7) Sri Venkataramana, learned counsel for the appellants contended that the appellate Court without referring to the evidence of the respondent and without givng a finding whether the evidence of the appellants could be believed or not merely relying on the commissioner's report, Ex. A-5, which was ex parte and inadmisssible in evidence and referring to certain admisssions of D. Ws. 1 to 3 has held that the respondent has acquired the right to use the cart track A B C D and A B C E both by prescription and as easement of necessity, which, he urges, is perverse because there is absolutely no evidence of the acquisition of the right by prescription and the question of the right of easement by necessity does not arise when there is another pathway available and the right of way being a discontinuous easement and the Commissoner's report being ex parteand inadmissible in evidence.

(8) I would first take up the question relating to the admissibility of the Commissioner's report. The present suit was instituted on 22-12-1953. On 23-12-1953 Sri M. Venkana, Advocate, P. W. 1, was appointed Commissioner by Court to makean inspection of the suit track fields and other tracks and to take measurements and prepare a plan. Ex. A-1 is the warrant of appointment of the Commissioner. This appointment was made without giving notice to the apellants. Ex. A-2 is the noticeissued by P. W. 1 to the Advocate for the plaintiff intimating the date of the execution of the warrant. Ex. A-4 is the notice said to have been given to the defendants by P. W. 1, Ex. A-5 is his report and Ex. A-6 is the plan prepared by him. The appointment of Sri M. Venkanna as Commissioner appears to have been made under Order 26, Rule1 C. P. C. It runs thus:

'In any suit in which the Court deems a local investigation to be requisite or proper for the parpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or anual net profits, the Court may issue a Commission to such person as, it thinks fit directing him to make such invesstigation and to report thereon to theCourt: Provided that, where the State Government has made rules as to the person to whom such commision shall beissued, the Court shall be bound by such rules'.

(9) Rule 10 of Order 26 prescribes the procedure after the appointment of the Commissioner. It reads:

'(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing singned by him to the Court'.

Clause(2) Of the said Rule enjoins that the report of the Commissioner and the evidence taken by him shall form part of the record and shall be evidence in the suit.

(10) The contention of the learned counsel for the appellants is that as the report would form part of the record and would be evidence in the case, it was incumbent on the Court to issue notice, before appointment or at least after appointment.

(11) The question that arises is whether any duty is cast on the Court to issue notice either before an order is passed for the appointment of a Commisioner or after. There is nothing in Rule 9 of Order 26 to warrant a contention that there is a duty cast on the Court to issue notice before an order is passed under that Rule. It is, in my opinion, open to the Court to issue an exparte commission if it thinks that a local investigation is requisite for the purpose of the suit. Of course, under Rule 18 it is obligatory on the Court after issuing Commission to direct the parties to the suit to appear before the Commissioner in person or by their agents or pleaders. It is so because each party should have a chance of presenting his or her case and it is in conformity with the principles of natural justice that it is only evidence taken in the presence of the party that should be used against him and it is for that purpose that Rule 18 requires the Court to direct the parties to the suit to apear before the Commissioner. From the above discussion, it would follow that though it is not obligatory on the Court to issue notice to the defendant before the appointment of a Commissioner, it is mandatory on the Court after issue of the commission to direct the parties to appear before the Commissioner.

(12) In the instant case, there is neither any notice to the appellants before the appointment of the Commissioner nor after the issue of the commission. The learned counsel Sri Bahah relied on Ex. A. 4 a notice said to have been given to the appellants and contended that that was sufficient compliance. I do not agree with this contention. The Commissioner as P. W. 1 admits that this notice could not in station and the third defendant refused to accept it. The third defendant has denied this fact. Even assuming that what P. W. 1 says is correct, the question arises whether that is sufficient compliance with the provisions of Rule 18 of Ordere 26 C.P.C. As stated earlier, that rule casts a duty on the Court. There is nothing on record to show that such direction was given by the Court after issue of the Commission. Notice by the Commissioner would not be sufficient compliance of Rule 18 of Order 26 C.P.C.

(13) The scope of Order 26, Rule 18 was considered in the Madras High Court in the case of Latchan Naidu v. Rama Krishna Ranga Rao, 40 Mad L. W. 358 : (AIR 1934 Mad 548) and it has been held:

'Rule 18 of Order 26 of the Code of Civil Procedure is mandatory and is intended to ensure that the parties have notice of appiontment of a Commissiner and that they must attend his investigation. Thereis no power in the Court to issue an ex parte commission and even an emergency cannot absolve the Court from complying with Rule 18'.

This decision has been approved so far as it related to rule18 by a Bench of this Court in the case of Chalapathi Veeranna v. Chalapathi Venkatachalam, : AIR1959AP170 . In this case relying on Rule 18 and the above cited case 40 Mad L. W. 358 : (AIR 1934 Mad 548) it was contended that it was obligatory on the Court to issue a notice before the appointment of a Commissioner. It was held:

'Rule 18 contemplates a situation after the appointment of a Commissioner and not before the commission is issued. There is nothing in Rule 9 to warrant a contention that a duty is cast on the Court to issue an ex parte commission if it deems that a local investigation is requisite for the purpose of the suit'.

(14) It is, therefore, clear that so far as Rule 18 is concerned, their Lordships have approved the decision in the case of 40 Mad L. W. 358 : (AIR 1934 Mad 548). My atention was drawn to the casein re: P. Moosa Kutly, : [1953]23ITR349(Mad) and contended by Sri Baliah the learned counsel that even under Rule 18 it is not obligatory on the court to issue a notice, for if the Commissioner is not going to investgate or inspect the site before the defendant appears most often there will be no point in taking out a commission because the object of the commission itself would be obliterated. I do not find any substancein this argument. As discussed above, Rule 18 clearly lays down that after the issue of the commission, the Court should direct the parties to appear before the Commission.

In the case relied upon by the learned counsel viz., : [1953]23ITR349(Mad) it has not been held that it is not obligatory on the Court to issue notice after the issue of the commission; on the other hand there is a definite finding by the learned Judge that there is a definite finding by the Court as required by Rule18. As no direction was given by the Court under Rule 18 and no notice was given to appellants 1 and 2, though the first appellant said that the 3rd appellant had no notice and P. W. 1. says tht notice was issued, but admittedly none of them was present at the time when the Commissioner made his inspection and the whole thing was done behind their back, no reliance can be placed on such a report given by the Commissioner. It must be remembered that Rule 10 (2) of Order 26, C.P.C. makes the report of the commissioner evidence in the suit. Therefore it is of importance that the report should not be founded on representations made to the Commissioner or on matters brought to his notice by one party to the suit alone. This alone would be sufficient to ignore the report.

The contention of Sri Baliah, the learned counsel for the respondent is that even assuming that the report of the Commissioner has to be ignored, there is no reason why the evidence of the Commissioner should not be taken into accound. Sri Venkataramana, the learned counsel for the other side on the other hand urges that the Commissioner's examination as a witnesss is only under Rule 10 (2) touching on matters in his report and when his report cannot be relied upon his evidence which is based on the report could not be relied upon. I find sufficient force in this contention. The examination of the Commissioner is under Rule 10(2) and that relates to matters referred to in his report and when the report is to beignored, I canot understand how his evidence which is based on the report could be relied upon. Sri Balish the learned counsel drew my attention to certain obsevations in an unreported judgment of Basheer Ahmed Sayeed, J. in C.R.P. 997 of 1957 (Mad), referred to in : [1953]23ITR349(Mad) and relied upon the observation of his Lordship Bashir Ahmed Sayeed J., that there could not be any objection to the Commissioner being examined as private individual by the plaintiff.

With due respect, I cannot agree with the said observation. The Commissioner would only given evidence to what he had seen or inspected and that may be evidence only pertaining to the day on which he inspected the site. He cannot be in a position to give evidence as to what would be the position on other days. Even assuming that the Commissioner's evidence can be relied upon, I think his evidence does not advance the case of the respondent any further. I would refer to his evidence while discussing the evidence of the other witnesses.

(15) The next question that has to be considered is whether the respondent has made out a case that he has acquired the right to use the cart track A B C D and A B C E either by prescription or as easement of necessity.

(16) I would first take up the case of prescription. The trial Court after discussing the entire evidence has held that the respondent has not made out any case. The appellate Court in para 8 of the judgment has considered this point; but I find that it has mostlys based its conclusion on the report of the Commissioner and on ceretain admissions of D. Ws. 1 to 3 without either referring to or discussing the evidence of the respondent. The contention of Srin Venkataramana the learned counsel for the appellants is tht there is absolutely no evidence. Before discussing the evidence, I would like to refer to the relevant provisions of the Act.

(17) Section 15, which refers to the acquisition by prescription is to the following effect:

'Where the access and use of light or air to and for any building have been peaceably enjoyed there with, as an easement, without interruption, and for twenty years, and where support from one person's land or things affixed there to, has been peaceably received by another person's land . . . . . and where a right of way or another easement has been peaceably and openly enjoyed by any person claiming title there to, as an easement, and for twenty years, theright to such access and use of light, or air, support or other easement shall be absolute.'

(18) The instant case is one where the respondent claims the right of way. Before a right of way can be acquired as an easement, it is necessary under the above provision to show:

1. that there has been an actual enjoyment of that right.

2. that the enjoyment has been open;

3. that it has been peaceably enjoyed;

4. that it has been as of right;

5. that it has been as an easement;

6. that the easement was enjoyed without interruption and it has been enjoyed for 20 years.

(19) Unless all the ingredients areproved, no right of easement can accrue. I have therefore to see whether in the present case, all those ingredients have been established. The respondent as P. W. 3 states:

'To cart manure and produce from Cherlothota the tract shown A B C D in the plaint plan is being used.'

Excepting this bare statement, there is nothing in his evidence to show that the track A B C D has been used by him as of right, that it had been enjoyed peaceably, as an easement and without interruption for 20 years. The other witness P. W. 2 deposes:

' All the crops raised in Cherlathota have to be carted through Ootikunta way viz. A B C D of the plaint plan'.

Excepting this bare statement there is also nothing in his evidence to show the ingredients of easement.

(20) The Commissioner's evidence as P. W. 1 also if taken into account would not be helpful for he has said nothing and he could not have as a matter of fact stated because he had no pesonal knowledge.

(21) Now, I have to see whether, as observed by the appellate Court, by the admissions of D. Ws. 1 to 3 this right of easement could be established. The admission by the defendants are said to be that the cart track F. H. D. shown in the Commissioner's plan which is F. E. D., according to the appellants, was a saline land, that during the rainy season and after wards till the summer season, set in, there would be quick-sands in the said tracks and that bulls could not pass through the same during the rainy season. The secircumstances viz., that the track F. H. D. was a saline land, that during the rainy season there would be quick sands and that bulls could not pass through that path, would not go to show easementary right could be established over A B C D and A B C E as claimed by the respondent herein, unless the ingredients required to establish that right over those cart-tracks are proved. It is clear therefore that the admission relied upon would not be helpful in establishing the right of easement.

(22) The report of the Commissioner also refers to the same facts relating to the cart track F. H. D. As discussed above, this also in my opinion would not establish the easementary right.

(23) From the above discussion, it would appear that there is absolutely no evidence in the case to show that the respondent acquired any right by prescription and the evidence relied upon by the appellate Court was no evidence at all on which such a conclusion be based.

(24) Assuming that the respondent had not acquired any right by prescription, the other question that arises is whether he has acquired that right as an easement of necessity. Section 13 of the Easements Act refers to easements of necessity and quasi-easements. It reads:

'Where one person transfer or bequeaths immovable property to another:

(a) if an easement in other immovable property of the transfer or testator is necessary for enjoying the subject of the transfer or bequest, the transfer or legatee shall be entitled to such easement; or

(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;

(c) if an easement in the subject of transfer or bequest is necessary for enjoying other immovable property of the transfer or testator the transferor or the legal representative of the testator shall be entitled to such easement; or

(d) ........................... Where a partition is made of the joint property of several persons -

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied be entitled to such easement.

The easement mentioned in this section cls. (a), (c) and (e) are called easements of necessity'.

(25) In the instant case, there has been a partition between the partiies and so clauses (e) and (f) of Sec. 13 would be the relevant clauses. I would first take up clause(e), which is called easement of necessity. What is easement of necessity has been the subject of discussion in various High Courts. In the case of Gangulu v.

Jagannatham AIR 1924 Mad 108, Devadoss and Coleridge, JJ. held:

'An easement of necessity, means an easement without which the property retained cannot beused at all, and not one merely necessary to the reasonable enjoyment of that property, but an easement apparent and continuous and necessary for enjoying the portions severed from the unity of ownership will pass to the transferee unless a contrary intention is expressed or implied in the instruments of transfer.'

In another case before the same High Court in Krishnamaraju v. Marraju, ILR 28 Mad 495, Sir Arnold White C. J. and Mr. Justice Davies held:

' if A has a means of access to his property without going over B's land, A cannot claim a right of way over B's land on the ground that it is the most convenient means of access. The law under Sec. 13, clause e) of Easements Act is the sameas the law in England.'

In another case Narayana Gajapathiraju v. Janaki Rathayyammaji, AIR 1930 Mad 601 Kumaraswami Sastri and Walsh, JJ. following ILR 28 Mad 495 and Esa Abbas Sait v. Jacob Haroon Sait, ILR 33 Mad 327 and Wutzler v.

Sharpe, ILR 15 All 270 held:

'An easement of necessity being an easement without which a property cannot be used at all and not being one merely necessary to the reasonable enjoyment of the property a plaintiff cannot claim on the ground of necessity a right of way over the land of another where another mode of access to his property exists.'

'For claiming easement of necessity it must be shown that he land conveyed is surrounded on all sides by lands belonging to third persons and the only way of access is over the contiguous land of the grantor.'

In the case of Ahmad Ali Fakruddin v. Dhondba Dasrath, AIR 1937 Nag 179 the Nagpur High Court held:

'The easement contemplated by Sec. 13 (a), Easements Act, must be absolutely necessary for the enjoyment of the subject of transfer or bequest. Where a plaintiff claims a right of way over a staircase as an easement of necessity and it is found that the plaintiff can have another access to the upper story of his house by construcing one or more staircase, the easement not being absolutely necessary for the enjoyment of the property cannot begranted as a necessary easement.'

Identical question had come up before the Allahabad High Court in the case of Sukhdei v. Kedar Nath, ILR 33 All 467 and it has been held:

'An easement of necessity is an easement without a property cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property.'

In this case reliance was placed on the English decision reported in Union Lighterage Co. v. London Graving Dock Co., (1902) 2 Ch 557.

(26) In a recent case, the Patna High Court in Rajpur Colliery Co. v. Purshottam, : AIR1959Pat463 took a similar view and it has been held by K. Ahmad and C. S. Prasad, JJ.:

'Where a person claims a right of way by certain road as an easement of necessity, that is, on the ground that he has no other means of going out or coming in to his plot except that particular road, but the evidence shows that there is an alternative route to and from his plot, his claims on ground of necesity cannot be entertained.'

(27) At this stage, I may also refer to the English case relied upon in the cases discussed above viz., (1902) 2 Ch 557 for the law under section 13(e), Easement Act is the same as the law in England and it has been held by Stirling, L. J.

'An easement of necessity is one without which the property retained upon a severance cannot be used at all; not one which is merely necessary to the reasonable enjoyment of that property.' Gale 'on Easements' while discussing the question of the necessity, at page 99, 13th Edition states: 'Clearly no way of necessity arises, if at the time of the grant, the claiming party owned other land which gave access.'

He observed on the same page:

'But speaking generally it does appear to be essential that the land is absolutely inaccessible or useless. If, however, a particular part of the property cannot, without the right claimed, be used for its designed purpose, then it is probably true to say that a right of access for that purpose will arise as to necessity.'

Mr. Katiar, while considering clauses (a), (c), (e) of section 13 of the Easements Act at page 185 in his 4th Edition of Law of Easements and Licences observes:-

'It is well settled that necessity under the seclauses as well as under the general law is not an ordinary necessity but an absolute one. In order to claim an easement of necessity it must be shown that it is one without which the property retained upon a severance cannot be used at all. It is not enough if it is shown that it is merely necessary to the reasonable enjoyment of property or that in the absence of an easement there would be inconvenience felt. Thus, a plaintiff who claims a right of passage through the field of another, has to prove that he has no alternative means of access however inconvenient to his field.'

(28) In the light of these authorities, if I refer to the facts of the instant case, I find that the respondent himself in his plaint has referred to another track F D E . The appellants also admitted the existance of this track and stated further that it is this track that has been used by the respondent to go to his field; where as the case of the respondent is that this track D E D was not in their use as this is saline land and during rainy seasons till summer sets in, there will be quick sands in the said track and it is impossible for the bulls to pass through. In other words, it is contended that it is practically impossible to use that track to go to his land. It is admitted by the appellants also in their evidence that during rainy season and after wards till full summer sets in there will be quick sands in the said track and that bulls cannot pass through the said track during that season, but go along the ridge of the adjoining patta land.'

It is common ground therefore that there is a cart track F E D though during rainy season it is difficult for that track to be used. In other words, the cart track F E D would not be a convenient means of access, the respondent for a portion of the year namely, the rainy season. But on the ground that it is not a convenient means of access, the respondent would not acquire any right of easement of necessity under section 13 of the Easements Act. An easement of necessity such as is referred to in Sec. 13 means an easement could not be used at all and not one merely necessary to the reasonable enjoyment of the property.

(29) From the above discussion, it is clear that the respondent in this caseis not entitled to any easement under clause(e) of section 13 of the Easement Act.

(30) Now, I have to see whether he is entitled to rellief under clause(f) of the said Act, which reads:

'If such as easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, been titled to such easement.'

(31) Section 5 defines a continuous easement and apparent easement and it runs as follows:

'Easements are either continuous or discontinuous, apparent or non-apparent. A continuous easement is one whose enjoyment is, or may be continual without the act of man. A discontinuous easement is one that needs the act of man for its enjoyment. An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competant person, would be visible to him. A non-apparent easement is one that has not such sign.'

Illustration (b) to this section is this:

'A right of way annexed to A's house over B's land. This is a discontinuous easement.'

It is therefore clear that a right of way like the present one in the instant case is a discontinuous easement although it is apparent. The effect of section 13 is this; that in cases of partition is an easement is one of necessity a person to whose share certain property falls is entitled to the easement apart from any question of its being apparent or continuous but that if the easement is not one of the necessity but is merely one necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, then such an easement should be apparent and continuous. There is a divergence of opinion of the High Courts so far as the question whether the right of way over a road is apparent and continuous.

I need not go into a detailed discussion of the point because in so far as the Madras High Court is concerned, the point is set at rest and it has been held that the right of way over a road is not an apparent and continuous easement and that unless it is an easement of necessity it will not pass merely on the ground of its being necessary for the use of the house as conveniently as it was before the partition. I may in this connection refer to AIR 1930 Mad 609. Sri Baliah, the learned counsel relying on Chhotalal v. Devshanker, 3 Bom LR 601 and AIR 1924 Mad 108 contended that a right of way may not be absolutely necessary, and yet necessary for this purpose of enjoying the property as it was enjoyed when the transfer of it took place and the existence of this last necessity had to be determined by reference to the prior user and if prior user has to be taken into account, the respondent would be entitled to a decree. I don't agree with the contention of the learned counsel for the respondent.

It is no doubt true that in 3 Bom LR 601 it has been observed that a right of way may not be absolutely necessary and yet necessary for the purpose of enjoying the property as was enjoyed when the transfer took place and a similar view has been taken in the Madras case relying on the above decision, but in both these cases, there is no reference to Sec. 5 of the Easements Act and no discussion at all. The case of 3 Bom LR 601 came up for consideration before the Bombay High Court in another case Malkajappa Chanvirappa v. Rachappa Panchappa, AIR 1942 Bom 305 and it has been held:

'In view of sections 5 and 13 (b) a right of way though apparent, if it is a formed way, is a discontinuous easement and therefore it does not fall under section 13 (b) and cannot be regarded as an easement of qualified necessity, or as it is calleld a quasi easement.'

In this case reliance was placed on AIR 1930 Mad 609. My attention was also drawn to M. Venkataramaniah v. V. Subbaramayya, : AIR1959AP153 . This was a case pertaining to water rights. So far as water rights are concerned, it is settled law that it is apparent and continuous; where as in the instant case the right claimed is the right to a pathway or cart-track and so far as the right of way is concerned, the settled law is that it is not apparent and continuous easement. This case therefore is not applicable to the facts of the instant case. That apart, in the above case, reliance was placed on the case 3 Bom LR 601 which was not been followed subsequently by that Court and the case of AIR 1930 Mad 609 has been followed. It also appears that attention of my learned brother was not drawn section 5 of the Easements Act.

(32) In the view I have taken, the judgement and decree of the appellate Court cannot stand. Appeal is allowed, the judgement and decree of the appellate Court areset aside and of the trial Court restored. The appellant will been titled to costs through out. No leave.

(33) Appeal allowed.


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